PANDURANG LAXMAN UPHADE Vs. GOVINDA DADA UPHADE

JUDGEMENT

(1.) The question raised in this application is one of some difficulty and arises under Order XXI, Rule 89 of the present Code. The circumstances under which it arises are these :-In execution of a decree the judgment-debtor s property was sold by auction and was purchased by the present applicant for a sum of Rs. 166 Thereafter, and before P the auction sale was confirmed, the judgment-debtor for a sum of Rs. 500 privately sold the property to one Gangaram, a stranger. Then within thirty days of the auction sale the B judgment-debtor applied under Order XXI, Rule 89 to set aside the sale. The trial Court dismissed his application, but the District Court has allowed it, and from the District Court s order this application is brought by the auction purchaser.

(2.) The question is, whether it is open to the judgment-debtor to make this application under Order XXI, Rule 89 after he has by private sale transferred or attempted to transfer the property to a third party, such private sale being made after the sale by auction. Under O, XXI, Rule 89 an application such as this can be made by any person either owning the property or holding an interest therein by virtue of a title acquired before the Court sale. It is not pretended that the judgment-debtor can come in as a person holding an interest acquired before the Court sale, but it is claimed that he can apply as being in the eye of the law the person owning this property. Now the words which I have quoted from Rule 89 differ from the words in which in the Code of 1882 the corresponding enactment was phrased. For there under Section 3ioA of the Act, a section which was introduced by the amending Act (V of 1894), such an application as this could be made by " any person whose immoveable property has been sold under this Chapter." No doubt at first sight it would appear that the generality of the words of Section 310A has been cut down and restricted by the phraseology of the present Rule 89. But it appears to me that the alteration of language effected by the present rule is sufficiently explained by reference to the conflict which there previously was as to the position of a purchaser acquiring title before the auction sale. In Srinivasa Ayyangar v. Ayyathorai Pillai (1897) I.L.R. 21 Mad. 416, for instance, it was held that such a purchaser could apply, " "whereas the contrary view was adopted in Ramchandra v. Rakhmabai (1898) I.L.R. 23 Bom. 450. I think, therefore, that the change brought about by Rule 89 may be understood as embodying the desire of the Legislature to make it clear that a purchaser acquiring title before the auction sale was competent to apply under this provision of the law.

(3.) So far, therefore, there would appear to be no reason for doubting the correctness of the District Judge s view. But the applicant has relied upon the decisions in Ishar Das v. Asaf Ali Khan (1911) I.L.R. 34 All. 186 and Sabbarayudu v. Lakshminarasamma (1913) I.L.R. 38 Mad. 745 which are undoubtedly in favour of that construction of Rule 89 for which he contends. I need not discuss the Madras decision in detail, because the stronger case in the applicant s favour is admittedly the Allahabad ruling. It is enough to say, with respect, that I am not able to adopt the view that it is open to the subsequent purchaser to apply under this Rule, for, as it seems to me, he is excluded by the terms of the Rule, The decision in the Allahabad High Court followed upon the argument that Rule 89 gave judgment-debtors a last chance of saving the property for themselves and that it was no part of the Legislature s intention that the property should be saved for persons to whom it might be privately sold after the auction sale had taken place. While fully conscious of the weight due to this argument both on its own merits and by reason of its acceptance by the learned Judges of the Allahabad Court, I cannot but think with very sincere respect that there is another aspect of the question which also must be regarded. For as I understand these provisions of the law, their object is not merely or not specifically to preserve the immoveable property in the hands of the judgment-debtor, but to ensure, so far as may be possible, that immoveable properties shall not at Court-sales be sold at inadequate prices. If that is an important consideration, then it follows that in such a case as this it is no answer to the judgment-debtor to say that even if his application be granted the immoveable property will still be lost to him. The reply would be that the loss of the immoveable property is now inevitable, but that the Court will be realizing the intentions of the Legislature if it construes these provisions so as to ensure that the monetary loss falling upon the judgment-debtor be as little as possible. For myself I can see no serious difficulty in holding that fox the. put-poses of the rule the judgment-debtor in the position of the present applicant is still the owner of property in the eye of the law, the auction sale being still unconfirmed. That position must, I think, be held either by him or by the subsequent vendee, and in my view it clearly does not belong to the subsequent vendee, because he has not acquired any title nor can he acquire any title until the auction sale has been set aside. The case does not, I think, essentially differ from the case where there is nothing between the judgment-1 debtor and the third party except an agreement that the third party will purchase at a higher value if the judgment-debtor can succeed in getting the auction sale set j aside, and in that case it appears to me clear that the judgment-debtor would be entitled to come in under Rule 19. I do not think that he is in any materially worse position because there has passed between him and the stranger a conveyance which confusedly is not and cannot be operative inasmuch as the auction sale is still subsisting.